"We agree that the absence of a transcript requires a new trial only if
the complaining party can make a prima facie showing that there was an
error or unfairness at trial. See, e.g., ORS 19.130(3); State v. Bonner, 77 Or
App 572, 576, 714 P2d 245 (1986). However, in situations where we
review de novo, as we do in this case, ORS 46.340(4); ORS 153.575(1), the
lack of a record prevents that review. Defendant essentially maintains that
he did not commit the infraction. It would be difficult, if not impossible, for
defendant to show the necessary prejudice in this context without a record
of the proceeding below. In such a case, the prejudice arises from the fact
that defendant cannot explain why the court erred, and we cannot determine
if it did." Mohler, 102 Or App at 77 (footnote omitted; citation omitted).

The problem with appellant's argument here--and with our holding in
Mohler--is that both ignore controlling Oregon Supreme Court precedent: Hoffart v.
Lindquist & Paget Mortgage Co. In particular, although appellant acknowledges that the
test set out in Ethyl Corp. is generally controlling, she fails to acknowledge that the
operative language in Ethyl Corp. is taken verbatim from Hoffart--and that Hoffart itself
was an equity case. See also Smith v. Custom Micro, Inc., 311 Or 375, 378-79, 811 P2d
1371 (1991) (citing Hoffart with approval). Similarly, in Mohler we failed to cite, much
less address, Hoffart.

In Hoffart, the defendant appealed from a decree imposing a constructive
trust. After trial, the court reporter's shorthand notes and all trial exhibits were lost. The
appellant moved for relief under the statutory antecedent to ORS 19.130, and the
Supreme Court denied that relief. In so holding, the court explained why the requirement
of a prima facie showing of error applies equally to cases involving de novo review:

"This court cannot exercise an informed discretion unless there is at least a
prima facie showing of error, or unfairness in the trial, or that there had
been a miscarriage of justice. As the court said in Bingman v. Clark, 178
Iowa 1137, 159 N. W. 172:

"'To say the least it would seem unfair to this defendant, who
has obtained a judgment against this plaintiff, to impose upon him
the burden and expense of a second trial, until it is shown either that
the first trial was in some way unfair, or some erroneous rulings
made at the trial * * * The burden rests upon the party attacking the
judgment to show something of equitable cognizance which shows
him entitled to relief from the judgment. The judgment imports a
verity. The verdict is presumably right, and, being presumably right,
will not be set aside until it is affirmatively shown to be wrong or
improperly obtained. To set aside a verdict because of possible
injustice to the adverse party is quite as likely to do a great injustice
to the other party. He is subject to the risk of a new trial, and this
risk involves possible loss of evidence and the death of witnesses.
This hazard he ought not be compelled to take, unless it is made
affirmatively to appear that in equity and good conscience he ought
not to be permitted to hold the advantage he has gained by the
verdict.'

"* * * * *

"In the instant case we are given no information whatever about the
evidence, the trial, or any errors claimed to have been committed upon the
trial; nor are we furnished any facts indicating that the decree of the Circuit
Court was wrong, inequitable or injust." Hoffart, 182 Or at 617-18.

Mohler cannot be reconciled with Hoffart. Accordingly, we overrule
Mohler.

Here, appellant did not make a prima facie showing of error. Although she
asserts that substantial portions of the proceedings were not recorded or that the recording
is so distorted as to defy transcription, she does not, by affidavit or otherwise, explain
how or why the record, if complete, would demonstrate error. See Hoffart, 182 Or at 620
("[A]ffidavits relative to the question of an appellant's diligence and to the merits of the
appeal should be filed with this court in support of a petition to reverse the judgment *
* *"). See, e.g., Smith v. Custom Micro, Inc., 311 Or at 379 (addressing, and rejecting,
sufficiency of appellant's showing of error); Ethyl Corp., 270 Or at 655-56 (same).

Motion to reverse and grant new trial denied.

1. Former ORS 46.340(4), which was repealed in 1995, 1995 Or Laws, ch
658, § 127, provided for de novo review from a judgment in a district court case "in
which no right to jury trial is provided by Oregon law."